Policy —

Understanding the WIPO Broadcast Treaty

Ars takes a look at the controversial new broadcast treaty being debated at …

The end game

As the September meeting of the WIPO Standing Committee on Copyright approached, Love and his fellow fighters had reason for optimism. The USPTO finally organized a roundtable at their Alexandria headquarters the week before the SCCR. Forty leading thinkers and lobbyists were invited, including James Love, Ben Ivins of the NAB, and representatives from the EFF, Public Knowledge, Verizon, Intel, and DiMA (which, along with the NAB, supports the rights-based approach).

But after an afternoon of debate, no one was sure how the US delegation to WIPO would act, or how much weight US concerns would even carry. At the SCCR meeting in Geneva one week later (Sept 11-13), chair Jukka Liedes pushed for consensus and claimed to have found it—even though major disagreements remained. At the end of the meeting, a Diplomatic Conference was called for in 2007. The rights-based treaty was marching onward.

A few weeks later, on September 25, 2006 WIPO delegates from around the world converged on Geneva for the group's General Assembly meeting, where the recommendations of the SCCR would be heard and voted on. If the Assembly signed off on the plan for a Diplomatic Conference, then a DipCon there would be.

But the Assembly had other plans. Rather than sign off on DipCon in mid-2007, the group directed the SCCR to hold two additional sessions to work out disagreements, and it backed up the DipCon until December 2007, at the earliest. In additionand most cruciallythe Assembly directed the SCCR to "agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection."

Signal-based: the opponents of the rights-based approach could hardly believe it. Although the treaty would move forward and a Diplomatic Conference seemed assured, the signal-based approach was chosen, and the SCCR was told to consider more of the objections and find some real consensus. It seemed almost too good to be true, and yet there it was.

The reaction in the activist community was ecstatic. The EFF was "mighty chuffed," while Thiru Balasubramaniam of the Consumer Project on Technology said, "CPTech welcomes the Decision of the WIPO General Assembly to pursue a signal-based approach in this Treaty in lieu of granting dangerous new entitlements to broadcasters. As we made clear to the WIPO General Assembly, convening a Diplomatic Conference at this stage would have been premature."

What next?

At this point, what will be codified in eight Diplomatic Conference is still anyone's guess. With several meetings of the Standing Committee left and the draft text so full of options, it's still not clear what will emerge. With the General Assembly still backing the idea of the treaty, though, something will get hashed out, but opponents of the current draft can take comfort in the fact that it will be signal-based.

But what about webcasting? The US delegation has been a big backer of rights for "netcasters," as they call them. They have been supported by the Digital Media Association (DiMA), a lobbying group that includes Apple, Amazon, Microsoft, Real, and Yahoo on its membership roll. This part of the treaty has always been more controversial, since it's less clear what "broadcasting" means on the Internet.

Because of all the concern, webcasting was broken off from the main treaty some time ago and stuffed into an Appendix. This Appendix was later moved onto its own separate track, which means that WIPO will consider a standalone webcasting treaty at some point in the future.

The takeaway is that even large international organizations like WIPO can be persuaded to "think different." While WIPO and the WTO can sometimes be caricatured as mere rubber stamps for multinational interests, the reality is often more complicated. WIPO, for instance, has been considering a "Development Agenda" for some time that seeks to benefit developing countries; it was further discussed, with positive results, at the most recent General Assembly meeting.

And the credit for adopting a signal theft approach to combating broadcast piracy cannot be simply chalked up to US activist organizations. Many nations offered constructive criticism and alternative proposals to restrict what they saw as over-broad rights that could be granted to broadcasters. In the end, even the US delegation was opposed to holding an immediate diplomatic conference. The draft treaty text still had too many alternatives and there was too much outstanding disagreement to make such a conference productive.

So stay tuned: the saga hasn't yet ended, but it's heading in what looks like a positive direction. It will give broadcasters the legitimate tools they need to combat signal theft but will refrain from giving them a new half-century IP right over those signals. From high up in the Orbiting HQ, that looks like a pretty good solution.